Citation Nr: 1031022
Decision Date: 08/18/10 Archive Date: 08/24/10
DOCKET NO. 08-34 447 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased rating for major depressive disorder,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Robert E. P. Jones
INTRODUCTION
The Veteran served on active duty from February 1998 to February
2003.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from an August 2007 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. The Veteran moved and jurisdiction has been transferred
to the RO in St. Louis, Missouri.
FINDING OF FACT
The Veteran has mild major depressive disorder and is functioning
well, with meaningful and positive interpersonal relationships.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for major
depressive disorder have not been met. 38 U.S.C.A. § 1155
(2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before addressing the Veteran's claim on appeal, the Board is
required to ensure that the VA's "duty to notify" and "duty to
assist" obligations have been satisfied. See 38 U.S.C.A.
§§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
Notification obligation in this case was met by way of a May 2007
pre-adjudication letter from the RO to the Veteran. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Regarding VA's duty to assist the Veteran in obtaining evidence
needed to substantiate her claim, the Board finds that all
necessary assistance has been provided in this case. The
evidence includes service treatment records and VA medical
records. The Veteran has been provided two VA psychiatric
examinations. The Veteran and her representative have not made
the RO or the Board aware of any additional evidence that needs
to be obtained in order to fairly decide this appeal and have not
argued that any errors or deficiencies in the accomplishment of
the duty to notify or the duty to assist have prejudiced the
Veteran in the adjudication of her appeal. Therefore, the Board
finds that the RO has satisfied the duty to notify and the duty
to assist and will proceed to the merits of the Veteran's appeal.
A September 2006 rating decision granted the Veteran service
connection and a 30 percent rating for major depressive disorder.
The Veteran submitted her claim for an increased rating in May
2007.
The Veteran contends that she is entitled to a rating in excess
of 30 percent for her major depressive disorder. She maintains
that her doctor increased her psychiatric medication, which
indicates that her disability has worsened. Her service
representative noted in July 2010 that the Veteran lost her last
job because she physically assaulted a co-worker, and he asserted
that this indicates that the Veteran's psychiatric disability is
more disabling than the 30 percent assigned.
Diagnostic Code 9434 provides that a 30 percent rating is
warranted for major depressive disorder where there is
occupational and social impairment with occasional decrease in
work efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less often),
chronic sleep impairment, and mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent rating is warranted where there is occupational and
social impairment with reduced reliability and productivity due
to such symptoms as flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more than
once a week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of
only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent rating is warranted where there is occupational and
social impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near- continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work
or a worklike setting); and inability to establish and maintain
effective relationships.
A 100 percent rating is warranted where there is total
occupational and social impairment, due to such symptoms as gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to time
or place; and memory loss for names of close relatives, own
occupation, or own name.
The Board finds that the Veteran's major depressive symptoms more
nearly meet the criteria of a 30 percent rating than the criteria
for a 50 percent or higher rating. Although the Veteran's
representative asserts that the appellant lost her job due to her
service-connected disability, the Board notes that an October
2009 VA examiner reviewed the appellant's history including the
co-worker episode, but did not attribute that incident to the
Veteran's service-connected disability. With regard to the
appellant's assertion that the increase in her prescribed
medication indicates that her psychiatric disability has
increased in severity, the Board notes that the Veteran is rated
based on the criteria of Diagnostic Code 9434, which does not
include consideration of the quantity of medication prescribed.
On VA examination in June 2007 the Veteran exhibited no abnormal
behavior. She was appropriately dressed and groomed, there was
no evidence of delusions or hallucinations, she maintained eye
contact, and she denied suicidal or homicidal ideation. She was
performing her activities of daily living without difficulty.
Her level of insight and social judgment appeared to be intact.
The examiner noted that the Veteran worked 44 hours a week
without difficulty and that the Veteran reported that she
performed well in her job. The examiner stated that the Veteran
was functioning pretty well and had meaningful interpersonal
relationships. The examiner specifically stated that the
Veteran's psychiatric problems did not appear to be having any
significant impact on her employment or social functioning. The
Veteran's global assessment of functioning (GAF) was noted to be
70.
The Veteran was again afforded a VA examination in October 2009.
She showed no impairment of thought processes or communication,
and she denied hallucinations and delusions. Her behavior, eye
contact and interactions were appropriate throughout the
interview. She admitted having vague thoughts of death and
suicide in the past, but never any intent or plan, and denied
current suicidal ideation. She reported having some difficulty
remembering things, but this was not apparent during the
interview. The Veteran had good memory of incidents in her life
and could detail the dates for most of these. Her speech was
logical and goal directed, with normal rate and rhythm. She
denied having panic attacks, but stated that she had had one when
she was off her medication for a month. According to assessment
data she appeared to be mildly to moderately anxious, mildly
depressed, and mildly hopeless about her future. She appeared to
have mild levels of depression and anxiety. The diagnoses
included mild major depressive disorder in partial remission and
dysthymic disorder. The examiner assigned the Veteran a GAF of
65 and stated that the Veteran had some mild depressive symptoms
but generally is functioning well and has meaningful and positive
interpersonal relationships. The examiner stated that there was
no evidence of an increase in symptomatology since her last
evaluation.
As shown above, the medical records have not shown
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long-term memory;
impaired judgment; impaired abstract thinking; or disturbances of
motivation and mood. The examiners have indicated that the
Veteran is functioning well and that her service-connected
psychiatric disability is not significantly impacting her
employment or social functioning.
From a review of the VA outpatient records and the VA examination
reports, the Board concludes that during the entire time period
under consideration the Veteran's symptoms of major depressive
disorder have more nearly met the criteria for a rating of 30
percent than the criteria for a higher rating. See Hart v.
Mansfield, 21 Vet. App. 505 (2007).
In a recent case, the U. S. Court of Appeals for Veterans Claims
(Court) clarified the analytical steps necessary to determine
whether referral for extraschedular consideration is warranted.
See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the
Board must determine whether the evidence presents such an
exceptional disability picture that the available schedular
evaluations for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the
Veteran's level of disability and symptomatology and is found
inadequate, the RO or Board must determine whether the claimant's
exceptional disability picture exhibits other related factors
such as those provided by the regulation as "governing norms."
Third, if the rating schedule is inadequate to evaluate a
Veteran's disability picture and that picture has attendant
thereto related factors such as marked interference with
employment or frequent periods of hospitalization, then the case
must be referred to the Under Secretary for Benefits or the
Director of the C&P Service to determine whether, to accord
justice, the Veteran's disability picture requires the assignment
of an extraschedular rating.
Although the Veteran's service-connected disability does cause
impairment, such impairment is contemplated by the rating
criteria. Moreover, the rating criteria implemented for major
depressive disorder reasonably describes the Veteran's
psychiatric disability. Therefore, referral for consideration of
an extraschedular rating is not warranted.
As shown above, the preponderance of the evidence is against the
Veteran's claim and a rating in excess of 30 percent for major
depressive disorder is not warranted.
ORDER
Entitlement to a rating in excess of 30 percent for major
depressive disorder is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs